I think he raises an important matter, and rather than take issue with him, I’d like to thicken the discussion a bit. Why are capital cases important? A few reasons include: their irreversibility (once the sanction is actually imposed); the gravity of the sanction; the degree to which death penalty policy seems even less teathered to good-government/empirically driven analysis than other sentencing policy (I would take substantial issue with John McGinniss’s claim that empirical data on crime has produced some clear truths about effective responses to crime – check out Dan Markel’s preliminary thoughts here); the degree to which an ongoing desire to empower states to execute twisted broader criminal justice jurisprudence; and the fact that the use of capital punishment has consequences for America’s ability to claim moral authority in many international debates and disputes.

That said, Doug is absolutely correct that far more individuals are devastated by other aspects of American criminal justice policy. Whether the issue is racial or economic justice, the over-use of imprisonment, the over-use of criminal laws generally, problematic use of discretion, or the poor quality of counsel (and, in the case of juveniles, the actual absence of counsel in many cases), capital punishment issues are only the tip of the public-policy-problem iceberg.

So why keep harping on it? First, I think that capital cases can provide a starting point for the discussion of broader issues, if only because the consequences are so serious. So, for example, there are real reasons to worry that the Strickland ineffective assistance standard fails to guarantee defendants competent representation. But the case for change can be appear more compelling when you explain that these deficiencies can cost a human life. Second, I think there is a moral imperative to continually interrogate any process that involves intentional killings by government – whether that is capital punishment, torture, or even war. Sometimes the government must kill, but it is essential that citizens continually challenge government to justify and constrain that choice. Finally, and most simply, I think the reasons I set out up front justify serious attention to death.

But I certainly don’t think that capital punishment should use up all the oxygen of criminal justice debate. Doug’s blog does a great job of highlighting the many other issues worthy of serious attention. All of us who write about criminal law issues try to keep the spotlight on the manifold ways that criminal justice policy needs significant improvement. And I think there is a legitimate critique that many individual lawyers and organizations expend vast resources on capital work, while shortchanging the many other issues worth their attention. (Capital punishment is, in many ways, the abortion issue for the left; just as anti-abortion advocates feel they reach their highest personal calling blocking women from terminating pregnancies, many death penalty abolitionists feel the same way about their habeas corpus work.) But many of these committed abolitionists wouldn’t turn their energy to other criminal law injustices, even if the Supreme Court (or the WTO) declared the penalty a no-go. They would find other grand and dramatic battles to fight, probably outside the criminal justice system.

Personally, I’m going to try to keep up a mix of commentary about crime and society. Death penalty is one of many important issues on the table. If I am too obsessed, it is only by a degree – and is perhaps the result of my own present immersion in the issue as a result of the ABA death penalty assessment project. But I do think Doug’s caution is well-founded, a good reminder that we should never get lost in any one rabbit hole when we are trying to find a herd.

4 Responses

“far more individuals are devastated by other aspects of American criminal justice policy.”

Agreed. But some of those are devastated by false negatives, not false positive. When the discussion about errors in the criminal justice system focuses exclusively on false positive, I detect a worrisome bias. Perhaps the world of law profs is dominated by the defense view. But let’s face it, the error problem has two related Bayesian dimensions.

In the area that I study–child abuse–there is plenty of reason to think that the false negative problem is enormous. But for a variety of reasons, the false positive problem gets all the attention in the media and among most academics.

None of which disagrees with your post. It is just to ask, why no mention of victims who never receive justice?

A bit off point, but these discussions about the criminal justice system are always completely one-sided.

In order to have any serious discussion about the criminal justice system it has to be acknowledged that the system gets it right the vast, vast, vast, majority of the time. Not withstanding the good professor’s unproven and unprovable “sense that a substantial number of innocent people may be pleading guilty to felonies,” the latest DOJ stats that I have seen (from 2003) is that 95% of all felony convictions in state courts occur by plea-bargain. That isn’t so easily dismissed that it hardly bears mentioning: its a titanic fact.

You also have to talk about the role of prosecutorial discretion in not bringing an indictment or information because the arrest doesn’t warrant prosecution which – if my experience in a prosecutor’s office is any gauge -happens to between 3-5% of the time (Over much pouting by cops and prosecutors who usually feel the cases have merit, I might add).

Particularly, given those two factors, you would be hard-pressed to find any system of government or even industry that gets it right as often as our criminal justice system does.

I know that’s not what this post is about, but it seems to me that not only is the focus always on possible error in capital cases, but its always on possible error rather than the 97-99% of the time when conviction is agreed to, or the case is never brought at all.

MJ: What you are calling “accuracy” is itself one-sided. That measure is the chance that a guilty verdict is factually correct; it is not a measure of how often an acquittal (or other outcome that might let a guilty person go free) is factually incorrect. And yes, I hasten to add, we accept far more of those kinds of errors in exchange for minimizing the false positive problem.

But how many? That question has to be part of the discussion about acceptable error rates in order to be coherent. Think of it this way: we could cut down on many (maybe most) of the false positives in murder cases by changing the burden of proof from “beyond a reaosnable doubt” to “beyond any doubt.” And if the only thing we cared about was false positives, then making that change would clearly be a good idea. But are you ready to make that change in order to minimize the admittedly horrible false positive problem? I’m not — because of the admittedly horrible false negative problem it would cause.